Board of Review Decision 334-FHJV-8H72

The claimant was discharged for insubordination because she refused to continue performing the additional payroll duties that she had temporarily been assigned after another employee had resigned. Since she understood that she was expected to complete these duties until the employer completed the hiring process, her refusal was deliberate misconduct in wilful disregard of the employer’s interest within the meaning of G.L. c. 151A, § 25(e)(2).

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Issue ID: 334-FHJV-8H72

Board of Review Decision

Introduction and Procedural History of this Appeal 

The employer appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) to award unemployment benefits. We review, pursuant to our authority under G.L. c. 151A, § 41, and reverse.

The claimant separated from her position with the employer on February 20, 2025. She filed a claim for unemployment benefits with the DUA, effective February 16, 2025, which was denied in a determination issued on May 2, 2025. The claimant appealed the determination to the DUA hearings department. Following a hearing on the merits attended only by the claimant, the review examiner overturned the agency’s initial determination and awarded benefits in a decision rendered on July 23, 2025. We accepted the employer’s application for review.

Benefits were awarded after the review examiner determined that the claimant had not engaged in deliberate misconduct in wilful disregard of the employer’s interest or knowingly violated a reasonable and uniformly enforced rule or policy of the employer and, thus, was not disqualified under G.L. c. 151A, § 25(e)(2). After considering the recorded testimony and evidence from the hearing, the review examiner’s decision, and the employer’s appeal, we remanded the case to the review examiner to obtain additional information about the reason for the claimant’s separation. Both parties attended the remand hearing. Thereafter, the review examiner issued his consolidated findings of fact. Our decision is based upon our review of the entire record.

The issue before the Board is whether the review examiner’s decision, which concluded that the employer had not shown the claimant engaged in deliberate misconduct in wilful disregard of its interest by refusing to perform certain payroll duties, is supported by substantial and credible evidence and is free from error of law.

Findings of Fact

The review examiner’s consolidated findings of fact and credibility assessment are set forth below in their entirety:

1. The claimant worked full-time as a payroll clerk for the employer, a logistics transportation company, from June 11, 2018, through February 20, 2025, when the employer discharged her. 
2. The claimant’s primary duties were to process driver payroll, billing, filing, file maintenance, payroll/billing reconciliations, inventory control/ordering of supplies.
3. The claimant received an employee handbook when she was hired. 
4. The employer expected the claimant to process payroll for its drivers in a timely manner. The employer expected the claimant to ensure that drivers’ pay was accurate. The employer expected the claimant to fix any issues with drivers’ pay. The employer communicated these expectations to the claimant. The employer’s expectation was to “do what it takes” to get the job done. 
5. The account manager directly supervised the claimant. 
6. On or around December 2021, and then in the spring and summer of 2022, the claimant spoke with senior management about a pay increase. The claimant was told that her pay increase was tied to an ongoing contract negotiation that the employer was having with a large retail grocery store. 
7. On or around, January 2025, the claimant was assigned to additional payroll duties by the employer. The additional duties were for a separate transportation terminal (Terminal B). The claimant was still working at her original worksite location and was still handling the payroll for (Terminal A). 
8. The claimant was asked to handle payroll duties for the drivers in Terminal B when the prior terminal B manager who handled the payroll issues for the drivers in Terminal B left the employer. The claimant understood that the assignment was supposed to be temporary one to two weeks. 
9. The payroll functionality and how Terminal B paid their drivers was different from the payroll system that claimant was currently working under. The drivers in Terminal B are paid a flat rate, and when the drivers cross into another state with their cargo, the flat rate pay changes from state to state. 
10. The claimant had difficulty managing two separate payrolls’ functionality for terminals A and B. The claimant received many angry emails, texts, and phone calls from the drivers who operated out of Terminal B. 
11. The claimant sought help from the senior account manager who oversaw the operations at Terminal B, but [sic] claimant did not receive any assistance. 
12. On or around February 2025, the claimant requested the status about her pay increase. The employer responded that most of the customers that the employer provided logistics services for were asking for rate reductions, so it would be six months’ time before any increases are considered. The claimant did not receive a pay increase. 
13. After overseeing the payroll duties for Terminal A and B for about four weeks, the claimant was stressed out and had mild anxiety issues. On February 20, 2025, after 12 p.m., the claimant sent an email to the employer senior managers, and [X], her direct supervisor. The claimant asked to be relieved of her payroll duties/additional workload from Terminal B due to not receiving additional compensation. The claimant stated in her email that she would still perform her payroll duties for the drivers that operated out of Terminal A. The claimant also stated in the email that she would still handle the payroll issues for drivers from Terminal A that were assigned to handle loads from Terminal B. 
14. The claimant did not refuse to perform any of her original assigned payroll duties for Terminal A drivers. The claimant would have continued to perform the additional payroll duties for Terminal B drivers if the employer had given her a directive to continue to oversee the payroll for Terminal B drivers. 
15. On February 20, 2025, the employer discharged the claimant for insubordination when she asked to be relieved from performing additional payroll duties without the additional compensation. 
16. The claimant did not refuse to perform any job duties or refuse any directive from her managers. 
17. The claimant did not receive any warnings or corrective actions that she was not performing or refused to perform her job duties. 

Credibility Assessment: 

The claimant testified that she understood the employer’s expectation and did comply with it when she took on payroll duties for Terminal B. The claimant did oversee payroll for Terminal B for 4 weeks while still performing the payroll duties for Terminal A. The claimant further testified that she brought to the employer’s attention that the drivers in Terminal B pay rate was incorrect and that she needed assistance to fix it. The claimant did not have the state of mind to intentionally be insubordinate because after she asked to be withdrawn from the additional payroll duties, the employer did not issue a directive ordering claimant to continue performing the payroll duties for Terminal B. 

The employer was represented by a Human Resource manager who was hired after the claimant had been separated by the employer. The witness acknowledged that he received the claimant’s separation information secondhand. The witness testified that it was his understanding that the claimant was discharged due to poor work quality and that the employer found several errors with the payroll account that claimant oversaw. It is concluded that the claimant’s version of what led to her separation is more credible.

Ruling of the Board

In accordance with our statutory obligation, we review the record and the decision made by the review examiner to determine: (1) whether the consolidated findings are supported by substantial and credible evidence; and (2) whether the review examiner’s conclusion is free from error of law. After such review, the Board adopts the review examiner’s consolidated findings of fact except as follows. We reject the portions of Consolidated Findings 13 and 15 that state that the claimant asked to be relieved of her payroll duties for Terminal B as inconsistent with the evidence in the record. For the same reason, we also reject Consolidated Finding 16. In adopting the remaining findings, we deem them to be supported by substantial and credible evidence. However, as discussed more fully below, we reject the review examiner’s legal conclusion that the claimant is entitled to benefits. 

Because the claimant was discharged from her employment, her eligibility for benefits is governed by G.L. c. 151A, § 25(e)(2), which provides, in pertinent part, as follows: 

[No waiting period shall be allowed and no benefits shall be paid to an individual under this chapter] . . . (e) For the period of unemployment next ensuing . . . after the individual has left work . . . (2) by discharge shown to the satisfaction of the commissioner by substantial and credible evidence to be attributable to deliberate misconduct in wilful disregard of the employing unit’s interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee’s incompetence . . . . 

“[T]he grounds for disqualification in § 25(e)(2) are considered to be exceptions or defenses to an eligible employee’s right to benefits, and the burdens of production and persuasion rest with the employer.” Still v. Comm’r of Department of Employment and Training, 423 Mass. 805, 809 (1996) (citations omitted). 

The employer maintains a written employee handbook. Consolidated Finding 4. However, the employer did not articulate a specific rule or policy that the claimant was supposed to have violated. As such, it has not met its burden to show a knowing violation of a reasonable and uniformly enforced rule or policy. 

We next consider whether the employer has met its burden to show the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest. To meet its burden under this provision, the employer must first show the claimant engaged in the misconduct for which she was discharged. 

Following remand, the review examiner rejected as not credible the employer’s witness’ testimony that the claimant was discharged for poor performance because she made errors in processing payroll. Such assessments are within the scope of the fact finder’s role, and, unless they are unreasonable in relation to the evidence presented, they will not be disturbed on appeal. See School Committee of Brockton v. Massachusetts Commission Against Discrimination, 423 Mass. 7, 15 (1996). As the employer presented internally inconsistent written and testimonial evidence about the reasons for and circumstances surrounding the claimant’s separation, we believe that the review examiner’s assessment is reasonable in relation to the evidence presented, and we accept Consolidated Finding # 15 insofar as it provides that the employer discharged the claimant for insubordination in not performing her assigned payroll duties without additional compensation. 

The claimant sent an email to her supervisor on February 20, 2025, stating her concerns about her payroll duties for Terminal B drivers. Consolidated Finding 13. In this email, which was admitted into evidence as Exhibit 5, the claimant stated that she was “withdraw[ing] from the additional workload” of processing payroll for Terminal B “particularly in light of the recent decision to not increase [her] compensation.” Contrary to the review examiner’s findings, this language shows that the claimant had informed the employer that she would no longer be performing those duties. Inasmuch as the claimant’s email states that she was declining to continue performing the assigned payroll for Terminal B, Exhibit 5 shows that the claimant engaged in the misconduct for which she was discharged. See Consolidated Finding 15. Since nothing suggests the claimant inadvertently drafted or sent this email, we can infer that she acted deliberately.

However, the Supreme Judicial Court (SJC) has stated, “[deliberate] misconduct alone is not enough. Such misconduct must also be in ‘wilful disregard’ of the employer’s interest. In order to determine whether an employee’s actions were in wilful disregard of the employer’s interest, the proper factual inquiry is to ascertain the employee’s state of mind at the time of the behavior.” Grise v. Dir. of Division of Employment Security, 393 Mass. 271, 275 (1984). To evaluate the claimant’s state of mind, we must “take into account the worker’s knowledge of the employer’s expectation, the reasonableness of that expectation and the presence of any mitigating factors.” Garfield v. Dir. of Division of Employment Security, 377 Mass. 94, 97 (1979). Mitigating circumstances include factors that cause the misconduct and over which a claimant may have little or no control. See Shepherd v. Dir. of Division of Employment Security, 399 Mass. 737, 740 (1987).

The claimant understood she had been temporarily assigned payroll duties for Terminal B until the employer hired replacement terminal manager. Consolidated Findings 7 and 8. From this, we can reasonably infer that she understood that the employer expected her to continue performing those duties until the hiring process was complete. In her testimony, the claimant confirmed that she had previously covered payroll for Terminal B when the terminal manager was on medical leave. As such, we believe that the employer’s decision to temporarily assign these duties to the claimant in January, 2025 was reasonable. See Consolidated Findings 7 and 8.

Finally, we consider whether the claimant showed mitigating circumstances for her misconduct. Mitigating circumstances include factors that cause the misconduct and over which a claimant may have little or no control. See Shepherd v. Dir. of Division of Employment Security, 399 Mass. In this case, however, the claimant chose not to continue performing those duties without a pay raise. Although she may have been experiencing difficulty with the Terminal B payroll system, there was no evidence suggesting that this prevented her from completing payroll for Terminal B without a raise. Similarly, there is no evidence that the employer’s decision to delay the claimant’s pay increase rendered her unable to perform her assigned payroll duties. 

We, therefore, conclude as a matter of law that the employer has met its burden to show that the claimant’s discharge was due to deliberate misconduct in wilful disregard of the employing unit’s interest within the meaning of G.L. c. 151A, § 25(e)(2). 

The review examiner’s decision is reversed. The claimant is denied benefits for the week ending February 22, 2025, and for subsequent weeks, until such time as she has had at least eight weeks of work and has earned an amount equivalent to or in excess of eight times her weekly benefit amount.

Boston, Massachusetts                                              Date of Decision – June 18, 2026

1. Exhibits 5, while not explicitly incorporated into the review examiner’s findings, is part of the unchallenged evidence introduced at the hearing and placed in the record, and it is thus properly referred to in our decision today. See Bleich v. Maimonides School, 447 Mass. 38, 40 (2006); Allen of Michigan, Inc. v. Deputy Dir. of Department of Employment and Training, 64 Mass. App. Ct. 370, 371 (2005).
2. The claimant’s testimony in this regard is also part of the unchallenged evidence introduced at the hearing and placed in the record. 

Martha M. Wishart, Esq.
Chair

Michael J. Albano
Member

Any further appeal would further appeal further appeal would be to a Massachusetts State District Court
(See Section 42, Chapter 151A, General Laws, Enclosed)

The last day to appeal this decision to a Massachusetts District Court is thirty days from the mail date on the first page of this decision. If that thirtieth day falls on a Saturday, Sunday, or legal holiday, the last day to appeal this decision is the business day next following the thirtieth day.

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